ABSOLUT APPARELS Vs. VANISHREE ENTERPRISES AND ORS

JUDGEMENT

(1.) There is a delay of 40 days in the refiling of the appeal papers in this case. The appellant has sought condonation of the same by filing the present application which is supported by an affidavit sworn by Sh. Amitosh Moitra, one of the partners of the appellant firm. A reading of the application and the affidavit shows that the delay was occasioned mainly because the clerk of the Counsel for the appellant has misplaced the Court fee of Rs. 9,650/-which was purchased but had been inadvertently kept in some other file.

(2.) Respondent No. 2 who appeared in person for himself and on behalf of the remaining respondents stoutly opposed the prayer for condonation. He urged that the ground given by the appellant for condonation was neither cogent nor supported by an affidavit of the clerk who was responsible for misplacing the Court fee. We do not think so. The application sets out a specific case for condonation as indicated above and is supported by an affidavit of the partner of the appellant. We see no reason to disbelieve the averments made in the application and the affidavit. It is fairly well settled by the decision of the Supreme Court Indian Statistical Institute v. M/s. Associated Builders & Ors., 1978 AIR(SC) 335, that prayers for condonation of delay in refiling the appeal papers are not subject to the rigorous tests which are usually applied to applications under Section 5 of the Act for condoning delay in the filing of the appeals. To the same effect are two Divisions Bench decisions of this Court in S.K. Kulkarni v. Birla VXL Ltd., 1998 5 AD(Del) 634 and Radhey Shyam Gupta v. M/s. Kamal Oil & Allied Industries Ltd. & Ors., 2006 129 DLT 346 CO A No. 56-60/2005 disposed of on 19.4.2005. Following the said decisions, we allow the present application and condone the delay.

(3.) Alternatively Mr. Bagai urged that since defendant No. 2 had already appeared, the suit could proceed against the partnership as service upon one of the partners was a sufficient service upon the partnership.